Joseph v Antoine

[*1] Joseph v Antoine 2006 NY Slip Op 51068(U) [12 Misc 3d 1165(A)] Decided on June 7, 2006 Supreme Court, Kings County Lewis, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 7, 2006
Supreme Court, Kings County

Ghislane Lebon Joseph, Plaintiff,

against

Vania Antoine, ANTOINE JEAN-CLAUDE, EVANS JACOB, JEAN F. COLIMAN, and SYLVIL E. OLIVER, Defendants.



46200/00



Plaintiff Attny: Meyers Law Firm, PLLC

Defendant's Attny: Robert P. Tusa

Moore & Associates

Yvonne Lewis, J.

Sylvil E. Oliver and Antoine Jean-claude, two of the named defendants in the matter sub judice, have moved this court for summary judgment, pursuant to CPLR 3212, on the assertion that the plaintiff has failed to satisfy the requisite threshold requirements set forth in New York Insurance Law 5102(d). The plaintiff is alleged to have sustained physical injury when on January 15, 1999, a livery (driven by defendant Jean Coliman and owned by Evens Jacob) hit the rear of the Mazda car (being driven by defendant Antoine Jean-Claude and owned by Vania Antoine), in which she was a front seat passenger, causing it to hit a small car in front of it (owned and operated by the defendant Sylvil Oliver). Later that day, the plaintiff was treated and released from Brooklyn Hospital. On the following day, she began treatment at Flatbush Associates, and also treated with her personal physician who referred her to a therapy specialist on Kings Highway, with whom she treated for six months. Since that time, the plaintiff has not received any treatment for her alleged car-accident injuries; to wit, soft tissue injuries, bulging discs with

subligamentous central herniations, with cord impingement at C2-C3 through C7-T1, left shoulder impingement with intrasubstance tear, and bulging discs, facet changes, sac compression and bilateral neural canal narrowing at L4-L5 and L5-S1.

On June 22, 2004, defendant's reviewing neuroradiologist examined the plaintiff's left shoulder and cervical and lumbar spine MRIs and found ". . .no evidence of any disc herniations, no evidence of any disc bulges, and no evidence of rotator cuff tendon tears." Defendant's examining orthopedic surgeon concluded on July 13, 2004 that ". . .his clinical examination of plaintiff failed to reveal any objective evidence of an orthopedic disability as a result of the subject motor vehicle accident, and [that] no further orthopedic treatment was necessary. . ." He did make observations of post neck, back, left shoulder, and right knee strains. On July 22, 2004, defendant's examining neurologist noted that ". . .his clinical examinations of plaintiff failed to reveal any objective evidence of any neurological disability as a result of the subject motor vehicle accident. His impression was of a normal neurological examination." On the basis of the foregoing, the defendant asserts that there is no objective medical proof that the plaintiff's usual and customary activities were impaired in some significant way for ninety days of the first [*2]one-hundred and eighty days after the accident, or that the plaintiff sustained any permanent loss of use of a body organ, member, function or system, and more compellingly, ". . .[t]he medical evidence demonstrates that the plaintiff made a full recovery of any causally related injury."

Ghislane Lebon Joseph, the plaintiff herein, in her affirmation in opposition to the foregoing, claims that she was a passenger in the lead vehicle in the subject three-car accident.

She states further that after having gone to work immediately following the accident, the pain

from her injuries became too much and she made arrangements to be taken to Brooklyn Hospital where she was treated in the emergency room, x-rays taken, given pain medication, and released. She was referred to Flatbush Associates where she was examined on January 20, 1999, and found to suffer from post-traumatic headaches and dizziness, cervicalgia, paracervical muscle spasm, lower back pain, and left shoulder pain, whereupon she was ordered to undertake extensive physical therapy (for approximately one year until her no-fault benefits were denied), pain medication, cervical collar and pillow, lumbar support, as well as undergo a series of diagnostic tests. On November 2, 1999, MRIs of her cervical spine showed C2-C3 through C7-T1 bulging discs with subligamentous central herniation with cord impingement, of her lumbar sacral spine showed L4-L5 and L5-S1 bulging discs, facet changes and neural canal narrowing, and of the left shoulder showed impingement with intrasubstance tear and effusion. A sonogram of the neck showed abnormal findings suggestive of inflammatory changes, and an SSEP of the lower extremities showed abnormal findings. These findings were consistent with earlier diagnoses on January 30, 1999 and June 3, 1999. On December 30, 2005, the plaintiff was examined by another physician at Park Avenue Associates who made findings of "post concussion syndrome with epistaxis; cervicodorsal derangement with C2-3 through C7-T1 bulging discs with central herniation and cord impingement; cervical myeloradiculapathy; lumbrosacral derangement with L4-5 and L5-S1 bulging discs. . .left shoulder derangement with tear of rotator cuff and impingement; [and] right knee derangement with traumatic tendonitis." A fortiori, the plaintiff's attorney notes that the doctor's just mentioned diagnosis ". . .contains reference to the objective [test] results obtained during his examination of plaintiff, as well as the objectively-quantified

decrease in her range of motion of the lumbar spine, cervical spine and left shoulder. . . .and concludes that the patient has suffered a significant decrease in range of motion as a result of the injuries suffered in this accident. Counsel for the plaintiff also notes that both the doctor's and plaintiff's supporting affidavits ". . .set forth the duration of the injuries described therein, by indicating the absence of injury prior to the accident and to the extent and severity of the injuries suffered in the accident since then, to date." Plaintiff's counsel conclusively asserts that "[a]t the very least, the differing sets of diagnoses create a triable issue of fact which must be submitted to the jury." Finally, the plaintiff attested that despite the fact that the subject accident has rendered her partially disabled, with persistent pain, she has only treated sparingly for these injuries since she lost her insurance coverage with Union 1199 due to her inability to work full time following the accident. She stresses that ". . .[n]ot having medical insurance made [it] impossible for me to pay for the extensive medical treatment I had received while covered by no-fault insurance. As such, I have continued to live with the pain of these injuries to date."

In reply, the defense argues that since neither the doctor who last examined the plaintiff [*3]on December 29, 2005 nor the plaintiff has furnished a reasonable explanation for the more than 5½ year gap in her treatment, the instant motion for summary judgment should be granted.

"A party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v. Grevasioi, 81 NY2d 1062, 601 NYS2d 463; Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923). Once a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish

the existence of material questions of fact (see Alvarez v. Prospect Hosp., supra )

It is indisputable that five of the nine categories of serious physical injuries listed in Insurance Law 5102(d) are clearly inapplicable herein inasmuch as there is no allegation of death, dismemberment, significant disfigurement, fracture, or loss of a fetus. Hence, it remained only for this court to determine if on the facts presented the injuries asserted by the plaintiff are borne out by the medical evidence and constitute 1. permanent loss of use of a body organ, member, function, or system; or, 2. permanent consequential limitation of use of a body function or system; and/or 3. a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's ususal and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.

In this regard, this court finds that the defendants have made a prima facie showing that the Plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) on the basis of the medical reports furnished by their reviewing neuroradiologist, and examining orthopedic surgeon and neurologist as hereinabove discussed. However, the plaintiff, in turn, has submitted medical proofs sufficient to raise triable issues of fact with regards to the seriousness of her injuries. Contrary to the Defendants' contention, the affidavit of the most recent treating physician, on the basis of a review of her previous care, entire medical chart, recent examination, and MRIs, establishes that her injuries were a direct result of the accident that she was involved in on January 15, 1999; that the injuries which she sustained are consistent with how the accident occurred, and significantly limit her functions with respect to her back, neck, and shoulders, as

compared to normal functioning; and, that her injuries are permanent and serious in nature. In light of her doctor's affidavit which attests to objective tests (range of motion, leg raising, etc.) performed and decreased ranges of motion to the plaintiff's lumbar and cervical spines which correlate to similar tests conducted in close proximity to the subject accident, this court finds that sufficient issues of fact have been raised to defeat the defendants' request for summary judgment on the issue of serious injury (See Acosta v. Rubin, 2 AD3d 657, 768 NYS2d 642, citing Figueroa v. Westbury Trans., 304 AD2d 614, 757 NYS2d 756; Elfiky v. Harris, 301 AD2d 624, 754 NYS2d 59; Jelicks v. Camacho, 305 AD2d 373, 757 NYS2d 901, and Toure v. Avis Rent A Car Sys., 98 NY2d 345, 746 NYS2d 865).

In Pommells v. Perez, etc., 4 NY3d 566, 797 NYS2d 380, the Court of Appeals made it clear that ". . .even where there is objective medical proof, when additional contributory factors [*4]interrupt the chain of causation between the accident and claimed injury such as a gap in treatment, an intervening medical problem or a preexisting condition summary dismissal of the complaint may be appropriate. . . .[however]. . .[w]hile the cessation of treatment is not dispositive the law surely does not require a record of needless treatment in order to survive summary judgment a plaintiff who terminates therapeutic measures following the accident, while claiming serious injury,' must offer some reasonable explanation for having done so." The court went on to note that neither the plaintiff nor his doctors in that particular case had provided any reason for his failure to have pursued treatment for his injuries after the initial six-month period (citing, Franchini v. Palmieri, 1 NY3d 536, 775 NYS2d 232). That is not the case in the matter sub judice. Here, the plaintiff's on-going complaints of chronic pain, her inability to have

resumed full time employment, coupled with her expert medical evaluations, serve to adequately explain that the gap in her treatment was not indicative of a lack of serious injury, or the culmination of the plaintiff having reached her maximum medical improvement, but rather a direct result of financial constraints. Accordingly, the defendants' collective request for summary judgment, pursuant to CPLR 3212, on the assertion that the plaintiff has failed to satisfy the requisite threshold requirements set forth in New York Insurance Law 5102(d) is denied in its entirety. This constitutes the decision and Order of this Court.

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JSC